You can go your own way - the EAT explores serious misconduct dismissals

Two recent EAT cases have considered the fairness of dismissals of employees who had clean disciplinary records and in the absence of a single gross misconduct event.

In Mbubaegbu v Homerton University Hospital, the employer relied on a pattern of conduct, coupled with a belief that the employee was incapable of change, to justify summary dismissal. In Quintiles Commercial UK Ltd v. Barongo, the employer dismissed on grounds of serious misconduct where the employee had failed to complete two pieces of compulsory training. Both employers considered that trust and confidence had been destroyed, notwithstanding the absence of a single misconduct event.

In each case the EAT emphasised the need to focus on the statutory test, i.e. whether the dismissal related to the individual’s conduct and whether the dismissal was fair in the particular circumstances. The Burchell test in misconduct cases continues to afford employers considerable latitude and there is no rule that a dismissal for serious misconduct without a specific gross misconduct event or prior warnings will be automatically unfair.

Mbubaegbu v Homerton University Hospital

Facts

The Claimant was a consultant orthapedic surgeon with 15 years’ service and an unblemished career. The disciplinary proceedings that led to his dismissal stemmed from non-compliance with rules that had been introduced to address difficult interpersonal relations between three other surgeons in his department (the Department Rules and Responsibilities or DRR). When the DRR were introduced, the surgeons were notified of their importance by the Chief Executive and that non-compliance would be taken seriously.

In 2014 the Medical Director instructed an external HR consultant to produce a report concerning compliance with the DRR. The report identified failings by five surgeons. The findings against the Claimant were considered to be the most serious because he was the audit lead. After receipt of the first report, a new Medical Director started to review the Claimant’s clinical practice by examining incident reports and emails.

Disciplinary hearings took place for three of the surgeons, two of whom received a first and a final written warning respectively while another resigned before a decision was reached. The hearings for the Claimant and another surgeon were postponed pending further investigations. It took 8 months for the investigations into the Claimant’s incident reports to conclude. During this period, the Claimant continued to practice. By the time of the disciplinary hearing, which concerned 4 allegations from the compliance investigation and 13 allegations from the incident report investigation, the Claimant had not had any incidents for 16 months.

Although the Claimant had an unblemished disciplinary record and there had been no further incidents, the Respondent decided to dismiss without notice. The Respondent reached that decision because it believed that there was a pattern of conduct which raised concerns about patient safety. The Claimant’s responses during the investigation and disciplinary hearing had also been inconsistent. This caused the Respondent to conclude that there would be no change in the Claimant’s behaviour (notwithstanding the 16-month period where there had been no incident reports).

The Claimant brought complaints of unfair dismissal, wrongful dismissal and race discrimination. The Tribunal rejected his complaints. With regard to the unfair dismissal claim, the majority found that dismissal fell within the band of reasonable responses because the Respondent reasonably believed that there was a pattern of misconduct and the Claimant would not change his behaviour. The minority view was that some of the incidents relied upon were trivial and that the Respondent did not properly consider the fact that there had been no further incidents.

The decision was appealed on various grounds but for the purposes of this update, we will focus on the unfair dismissal appeal.

EAT decision

On appeal, the Claimant argued that, absent a single incident of gross misconduct, a dismissal without prior warning would generally be unfair. The Claimant referred to paragraph 23 of the ACAS Code which emphasised the importance of following a fair disciplinary process before gross misconduct and the case of Children’s Aid Society v Day where Lord Denning had stated that it would be “good sense and reasonable” not to dismiss for a first offence without giving the individual any warning or a chance to improve. According to the Claimant, the Respondent should not have aggregated a series of less serious matters to dismiss summarily for a pattern of conduct.

The Respondent argued that the reasonable responses test had been applied correctly. Any conduct that was sufficiently serious to undermine trust and confidence was sufficient to warrant dismissal. There did not have to be a single identifiable act. The EAT agreed that the Tribunal had adopted the correct approach. Whether or not the label of gross misconduct applied was not determinative of whether the dismissal was fair. There was no authority that said a single act was required or that it was wrong to rely on a series of acts, none of which amounted to gross misconduct in isolation.

There had been a “series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee.” The employer also reasonably believed that the Claimant was unable to change. This fell within the range of reasonable responses which was “undoubtedly a broad one.” The EAT noted that in the Children’s Aid case, Lord Denning had referred to the potential for dismissal without a chance to improve or warning for a man “who is determined to go on his own way.”

Quintiles Commercial UK Ltd v Barongo

Facts

This case also concerned an employee who was dismissed for misconduct in circumstances where he had no prior disciplinary record. The Respondent supplied staff for pharmaceutical companies and the Claimant was a medical sales representative. He was dismissed for failing to complete mandatory online training by the deadline and failing to attend a compulsory training course. The dismissal took place against a backdrop of performance concerns. The Claimant’s line manager had concluded that the Claimant’s failure to complete the training was gross misconduct. This was converted to serious misconduct on appeal but the decision to dismiss was upheld because the appeal manager concluded that trust and confidence had been broken.

The Tribunal found that once the Respondent had decided that the conduct was serious rather than gross misconduct, the Claimant should have been issued with a warning as he had a clean record. The Respondent appealed this decision because the statutory test for unfair dismissal simply stated that the reason must relate to the conduct of the employee. It did not have to be gross misconduct and the particular circumstances of the case had to be examined. There was no authority to say that dismissal for conduct short of gross misconduct and absent prior warnings was unfair.

EAT decision

The EAT agreed with the Respondent and remitted the case to be considered by another Tribunal. The statutory test did not state that a dismissal would be automatically unfair if the conduct was less than gross misconduct. The Tribunal had to assess the Respondent’s actions against the band of reasonable responses. The EAT recognised that it “may be that in most cases an ET will find that a dismissal in such circumstances falls outside the band of reasonable responses but it should be careful not to simply assume this is so, as if it were a rule laid down by section 98(4); it is not.” The Tribunal had not arrived at its decision having considered the ACAS Code or by explicit reference to the Respondent’s disciplinary policy. It had adopted an “impermissibly rigid” view that once the Claimant was dismissed for serious misconduct rather than gross misconduct, the dismissal could not be fair. This was too limited an approach to the Burchell test and/or an error of substitution.

Common themes

Each case indicates that there is no rule that a dismissal for conduct which does not of itself amount to gross misconduct is automatically unfair if no prior warning has been given. The Burchell test has to be applied to determine whether the dismissal falls within the band of reasonable responses. However, the fact that there have been two EAT decisions on the same point illustrates that such dismissals will be contentious. Employees with unblemished records expect to have the chance to improve their behaviour and employers will have to show that they reasonably believed that a lesser sanction would not suffice.

These cases where somewhat unusual in that the employers believed that trust and confidence could not be restored and there were longer-term concerns about the employees’ conduct/standards at work. Each employer felt that the employee would continue to “go their own way.” While, as the Respondent argued in Quintiles, Tribunals must avoid applying a standard approach, these types of dismissal will inevitably be hard-fought and attract some scrutiny.

The role of the regulator

For those in regulated sectors, the Mbubaegbu case is also interesting because the Claimant tried to argue that the Tribunal should have reconsidered their judgment in the light of the decision by the GMC that the Claimant remained fit to practice. The EAT dismissed this suggestion as the GMC and the Tribunal had different roles and tests to be applied. The Claimant's approach would run counter to the principle that there should be finality in litigation. Employers could not be expected to wait until the outcome of a regulator's determination before taking a decision to dismiss. Nor did the finding that the Claimant remained fit to practice mean that the employer's decision fell outside of the range of reasonable responses.